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Patient and visitor recordings can pose legal headaches for hospitals


September 28, 2017

Train staff on rules about protecting patient privacy and prepare security personnel in case they are called to intervene if someone starts video recording or broadcasting live in the emergency room or some other part of the hospital.

It’s become common for patients and visitors to record their experiences in a hospital or other healthcare facility, whether it's to document instructions being provided or simply take a selfie in the waiting room or emergency department. But these recordings can create legal headaches for providers since they can include other people who have not agreed to be recorded. Moreover, the photographers can become security headaches as well.

Third parties in camera crosshairs

For some time, providers have been concerned with patients and/or visitors recording their caregiver, often surreptitiously, during an exam or office visit to document the encounter in case something goes wrong, according to attorney Gary Sastow, with Brown, Gruttadaro, Gaujean & Prato in White Plains, New York.

People now are so accustomed to whipping out their smartphones to record their activities that they might not realize they’re recording third parties nearby, such as patients, staff, and other visitors, who might not want to be recorded. Younger people in particular record many details about themselves while receiving care or accompanying a patient and share them on social media, says Bryan Warren, director of corporate security for Charlotte, North Carolina–based Carolinas HealthCare System and past president of the International Association for Healthcare Security and Safety.

“You can educate your employees about HIPAA and privacy. But visitors and patients may not have an inkling about [others’ privacy rights],” he warns.

Usually these unsuspecting third-party photobombers don’t want to be part of someone else’s video or photo, particularly when they’re in a hospital or other healthcare setting. That desire for privacy is heightened among patients being treated for certain conditions, such as obstetrics/gynecology or cancer, adds David Zetter, president of Zetter Healthcare Management Consultants in Mechanicsburg, Pennsylvania, and a member of the National Society of Certified Healthcare Business Consultants.

CoPs require patient privacy

While many states have laws that require all parties to consent to videography or photos, they can be hard to enforce, especially if no one notices that the recording is being made or if the photographer is taking stealthy shots. Relying simply on the existence of this law won’t necessarily protect third parties from being recorded.

Moreover, there are expectations of privacy in patient care settings, even in states with only one-party consent. For example, CMS requires patient privacy as part of its Conditions of Participation (CoP) for hospitals, adds Warren, so hospitals need to take steps to provide that privacy. Allowing filming can also lead to HIPAA and state law privacy violations.

For facilities that don’t stop a recording done without consent, it can create liability.

NYC hospital serves as example

New York Presbyterian (NYP) Hospital agreed in April 2016 to pay $2.2 million to settle HIPAA violations after the disclosure of patients’ protected heath information to film crews and staff during the filming of “NY Med,” an ABC television series, without first obtaining authorization from patients.

NYP allowed the crew to film someone who was dying and another person in significant distress even after a medical professional urged the crew to stop, says Sastow. The widow of the dying patient discovered the privacy violation when she recognized her husband on the TV program.

A person recording also might become a security risk if the individual refuses to stop recording when asked or when a person who doesn’t want to be recorded notices and gets upset. If the person refuses to stop recording and won’t leave the premises, it could necessitate a call to law enforcement on the grounds of trespass, says Warren.

However, there are situations where a provider might wish to allow recordings, such as to memorialize a child’s birth.

“Privacy, security, and convenience have to go hand in hand. We want to be as hospitable as we can,” ways Warren.

Editor's note: This article originally appeared in Inside The Joint Commission.

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